B-136195, JUL. 15, 1958

B-136195, JUL. 15, 1958

TO DANNIE E. LECRONE, SUPERINTENDENT:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1958, AS FOLLOWS:

"THIS HAS REFERENCE TO YOUR LETTER OF APRIL 22, 1958, TO WATSON TOTUS, TOPPENISH, WASHINGTON, IN REGARD TO CLAIM NUMBER Z 1873877. I AM WRITING AT THE REQUEST OF WATSON TOTUS, A FULL BLOOD YAKIMAINDIAN.

"UNDER THE TERMS AND CONDITIONS OF AGREEMENT NO. DA-35-026-ENG-20998 BETWEEN THE ARMY ENGINEERS AND THE YAKIMA GENERAL COUNCIL, RESERVATIONS WERE MADE BY THE YAKIMA TRIBE FOR PROTECTION OF AND SEPARATE SETTLEMENT FOR PERMANENT INSTALLATIONS WHICH COULD NOT BE SALVAGED BY THE INDIVIDUAL INDIANS. THE FIRST REFERENCE IS FOUND IN SECTION 2 (E) WHICH READS AS FOLLOWS: * * * "IT IS AGREED THAT NO SEPARATE OR ADDITIONAL PAYMENT WILL BE MADE BY THE GOVERNMENT TO THE INDIVIDUAL MEMBERS OF THE TRIBE FOR THE COST OF CONSTRUCTING OR REMOVING TEMPORARY FISHING PLATFORMS AS DISTINCT FROM ANY COMPENSABLE INTEREST WHICH INDIVIDUAL MEMBERS OF THE TRIBE MAY BE ABLE TO ESTABLISH IN PERMANENT FISHING PLATFORMS, CABLEWAYS AND APPURTENANCES.' * * * ANOTHER REFERENCE IS MADE IN SECTION 5: * * * "EXCEPTING ONLY THE RIGHTS OF INDIVIDUAL INDIANS TO COMPENSATION FOR DAMAGES TO TANGIBLE PROPERTY, INDIVIDUALLY OWNED OTHER THAN TEMPORARY FISHING PLATFORMS, AND AS OTHERWISE PROVIDED IN PAR. 10 HEREOF.' * * *

"WE WOULD APPRECIATE VERY MUCH YOUR INTERPRETATION OF THE ABOVE MENTIONED AS IT WAS THE INTENTION OF THE YAKIMA TRIBE TO PROTECT THE INDIVIDUAL'S RIGHT TO CLAIM COMPENSATION FROM PERMANENT INSTALLATIONS WHICH COULD NOT BE SALVAGED.'

CONSIDERING YOUR REQUEST AS A REQUEST FOR REVIEW OF THE SETTLEMENT OF APRIL 22, 1958, WHICH DISALLOWED THE CLAIM OF WATSON TOTUS AND HIS PARTNERS FOR $2,588.70, COVERING THE COST OF CONSTRUCTING A JOINTLY OWNED PERMANENTLY ERECTED FISHING PLATFORM, OR STRUCTURE, WHICH WAS DESTROYED AS A RESULT OF CONSTRUCTION OF THE DALLAS DAM BELOW CELILO FALLS, OREGON, YOU ARE ADVISED THAT WE SEE NO BASIS FOR INTERPRETING THE ABOVE-QUOTED LANGUAGE OF THE AGREEMENT AS OTHER THAN A STIPULATION THAT CLAIMS OF THE CHARACTER INVOLVED WERE NOT INTENDED TO BE COVERED BY THE AGREEMENT AND THAT INDIANS HAVING SUCH CLAIMS WERE TO BE LEFT FREE TO PURSUE THEM BY ANY MEANS AVAILABLE AT LAW.

THE INSTANT CLAIM, HAVING BEEN SUBMITTED BY YOU ON BEHALF OF WATSON TOTUS AND HIS PARTNERS TO THE DISTRICT ENGINEER, PORTLAND DISTRICT, BY LETTER OF NOVEMBER 5, 1957, WAS FORWARDED HERE BY THE DEPARTMENT OF THE ARMY FOR DIRECT SETTLEMENT WITH THE RECOMMENDATION THAT IT BE DISALLOWED. THE ADMINISTRATIVE REPORT SHOWS THAT AHTEEN AND LITTLE AHTEEN ISLANDS, BETWEEN WHICH, ON THE OREGON SIDE AND ON ROCKS KNOWN AS TOTUS "V," THE CONCRETE FISHING PLATFORM, OR STRUCTURE, HERE INVOLVED WERE LOCATED, WERE PART OF THE PUBLIC DOMAIN; THAT THEY WERE WITHDRAWN FROM ENTRY AND RESERVED TO THE DEPARTMENT OF THE ARMY FOR USE IN CONNECTION WITH BONNEVILLE DAM BY PUBLIC LAND ORDER NO. 45, DATED OCTOBER 7, 1942; THAT THEY WERE REASSIGNED TO THE DALLAS DAM PROJECT BY LETTER DATED SEPTEMBER 10, 1954, FROM THE DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT; AND THAT THERE IS NO RECORD INDICATING THAT ANY RIGHTS TO THE ISLANDS, OR THE LAND ON WHICH THE TOTUS "V" IS SITUATED, HAVE BEEN GRANTED OR CONVEYED TO THE CLAIMANTS.

IN VIEW OF THE FOREGOING, AND SINCE THE UNITED STATES IN ITS TREATY WITH THE YAKIMA TRIBE OF JUNE 9, 1955, 12 STAT. 951, GUARANTEED THE TRIBE THE RIGHT OF ERECTING TEMPORARY BUILDINGS, AS DISTINGUISHED FROM PERMANENT STRUCTURES, FOR USE IN CURING FISH IN CONNECTION WITH THE EXERCISE OF THE FISHING RIGHTS GUARANTEED THEREUNDER, WATSON TOTUS AND HIS PARTNERS MUST BE HELD TO HAVE CONSTRUCTED AND MAINTAINED THE PERMANENT STRUCTURE INVOLVED WITHOUT ANY LEGAL RIGHT TO DO SO. THEY MAY NOT, THEREFORE, BE SAID TO HAVE BEEN DEPRIVED BY THE UNITED STATES OF ANY RIGHT, OR PROPERTY, ENTITLING THEM TO COMPENSATION UNDER THE FIFTH AMENDMENT OF THE CONSTITUTION, OR OTHERWISE. SEE TILTON V. CITY OF HAVERHILL, 42 N.E.2D 588.